Nullification Works

Tucked deep inside the 1,603-page federal spending measure is a provision that effectively ends the federal government’s prohibition on medical marijuana and signals a major shift in drug policy.

The bill’s passage over the weekend marks the first time Congress has approved nationally significant legislation backed by legalization advocates. It brings almost to a close two decades of tension between the states and Washington over medical use of marijuana.

Under the provision, states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.

The Obama administration has largely followed that rule since last year as a matter of policy. But the measure approved as part of the spending bill, which President Obama plans to sign this week, will codify it as a matter of law.

For decades, anyone who suggested that the Federal government loosen up its drug laws would have been laughed out of DC. So, pro-freedom activists turned to the states instead. Over the years, more than 30 states approved medical marijuana, and in recent years, it has been legalized for recreational purposes in four states: Colorado, Washington, Oregon, and Alaska.

All these measures, whether for medical marijuana or recreational, have been instances in which states have nullified federal law to varying degrees. The recreation legalization measure in Colorado, which prohibits any state agent from arresting, ticketing, raiding, or otherwise interfering with users of cannabis (if over age 21, etc.) makes it unconstitutional (according to the Colorado constitution) to assist federal agents with prosecuting cannabis users.

This is nullification pure and simple, and other states that declare various types of cannabis use to be legal are also nullifying federal law by passing laws in direct contradiction to federal law.

Experience has proven this works. The federal government, at this point can either continue to raid people in states where the democratic majority has clearly approved of its use, or the feds can admit defeat and quietly legalize what they can no longer prohibit without calling into question its own claims to democratic legitimacy.

This political reality is at the heart of the matter. We should not be surprised if the feds interpret the law in such a way as to still allow for raids and prosecution of peaceful people. This happens all the time. The Feds make a change designed to look like a move toward freedom, but bend over backwards to make sure they don’t actually curtail their own power. But the fact remains that the feds feel they need to at least give the impression that they respect state laws and the so-called political will of people in those states. Putting one’s faith in changes in legislation is a fool’s game, but we can indeed point to the political climate and see that at least on this issue, the feds are on the losing side. How long it takes for them to finally admit it remains another question.